Cite as U.S. v. Mack, 164 F.3d 467 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DENNIS CHARLES MACK, Defendant-Appellant.
U.S. 9th Circuit Court of Appeals
No. 97-50364
D.C. No. CR-96-00414-WJR-1
Appeal from the United States District Court for the Central
District of California William J. Rea, District Judge, Presiding
Argued and Submitted
August 3, 1998--Pasadena, California
Filed January 12, 1999
Before: Stephen Reinhardt, Stephen S. Trott, and Thomas G.
Nelson, Circuit Judges.
Opinion by Judge Trott; Dissent by Judge Reinhardt
COUNSEL
Don B. Kates (Argued), Benenson & Kates, Novato, California,
and C.D. Michel (On the Briefs), Michel & Associates, Los Angeles,
California, for the defendant-appellant.
Patrick J. Walsh, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
OPINION
TROTT, Circuit Judge:
OVERVIEW
This case is about contraband firearms outlawed by Congress
and targeted for confiscation and destruction, and who can and
cannot possess them once seized by a law enforcement agency.
Dennis Charles Mack, a private citizen, challenges his
convictions for unlawful possession of sawed-off shotguns and
rifles in violation of 26 U.S.C. section 5861(d), and possession of
handguns with obliterated serial numbers in violation of 18 U.S.C.
section 922(k). He argues that because he intended to destroy the
weapons as an agent of the local law enforcement agencies from
which he obtained them, he is exempt from punishment under the
statutes. Mack also challenges the constitutionality of the
statutes under which he was convicted. He argues that the statutes:
(1) exceed Congress's power to legislate under the Commerce Clause;
(2) violate the Second Amendment; and (3) interfere with the
sovereignty of the states. Mack also claims that he received
ineffective assistance of counsel. Finally, Mack argues that the
district court erred by refusing to instruct the jury on the
defenses of entrapment by estoppel and reliance on public
authority. We have jurisdiction pursuant to 28 U.S.C. section 1291,
and we affirm.
FACTS
From 1982 to 1996, Defendant-Appellant Dennis Charles Mack was
a federally licensed private firearms dealer who owned several gun
shops in the Los Angeles area. As early as 1992, Mack contacted
local police departments and offered to dispose of illegal weapons
the police had seized in exchange for the ability to keep and sell
the legal weapons they had confiscated. In 1994, Mack told William
Thompson, the property control officer for the Kern County
Sheriff's Department, that his federal license authorized him to
possess and to destroy illegal National Firearms Act registry
weapons (NFA weapons). [footnote 1] When the prosecutor asked
Thompson, "What did Mr. Mack tell you [in 1994] about his federal
firearms license?," Thompson's answer was, "He indicated that he
could take our guns, that it was no problem for him to take the
guns, both the salable guns and guns that we had for destruction
also." [footnote 2] As a result of Mack's solicitations, various
local law enforcement agencies entrusted him with numerous illegal
weapons with the expectation that the weapons would be destroyed.
[footnote 3]
On September 21, 1994, Inspector Ramiro Wong of the Federal
Bureau of Alcohol, Tobacco, and Firearms (ATF) inspected Mack's
premises and found ten illegal NFA weapons. Wong conducted this
inspection on information from an apprehensive gun dealer hired by
a bankruptcy trustee appointed to inventory the guns in the
defendant's shop. Upon discovering the weapons, Wong told Mack that
he was not authorized to possess NFA weapons. Mack replied that he
was allowed to possess the contraband because he was an agent of
the police departments from which he had obtained them so that they
could be destroyed. Wong informed Mack that he was mistaken. Wong
explained to Mack that he was simply a private person and that he
was not allowed to possess NFA weapons. Wong himself could not
confiscate the weapons because he was not authorized to do so.
Wong returned to Mack's shop for another inspection in January
1995, and discovered that Mack had not heeded his warning. Mack was
still in possession of the NFA weapons. Wong informed Mack for a
second time that he was not allowed to possess NFA weapons. As he
had before, Mack replied that he could possess the weapons because
he was an agent of the police and that he still intended to destroy
the weapons on their behalf.
On February 7, 1995, Wong returned to Mack's shop and issued
Mack a Report of Violations for possessing NFA firearms. The report
ordered Mack to refrain from taking possession of NFA firearms and
to abandon all NFA firearms currently in his possession to the ATF
or to the local police departments from which he had received them.
Mack signed the report.
Despite Wong's oral and written warnings, Mack continued to
receive more NFA firearms from local law enforcement agencies,
including the Kern County Sheriff's Department and the Huntington
Police Department. In July 1995, an ATF special agent went to
Mack's shop and confiscated ten sawed-off shotguns. The special
agent again informed Mack that he could not legally possess NFA
weapons.
After Mack's Federal Firearm's License was revoked at the
recommendation of Inspector Wong, Mack called ATF Deputy General
Counsel Daniel Cronin to discuss his agency theory. Cronin also
told Mack that he could not possess the weapons.
In November 1995, Mack sought renewal of his federal firearm's
license, but he sent in the renewal form three days late. The ATF
has authority under 18 U.S.C. section 923(g) to conduct compliance
inspections on federally licensed gun shops without consent.
However, the ATF must ask for consent to inspect gun shops when an
applicant is applying for a new license. After Inspector Wong
reviewed Mack's late request for renewal, Wong contacted Cronin to
discuss how the consent issue should be handled on a late renewal
request. Cronin and Wong agreed that Wong must get Mack's consent
to inspect because the renewal was late.
On November 21, 1995, Wong went to Mack's shop to discuss the
firearm's license renewal. With Mack's acquiescence, Wong inspected
Mack's gun shop and discovered more than 60 NFA firearms. After the
inspection, Wong and Cronin again discussed the inspection, and
Wong informed Cronin that he had asked for and received Mack's
consent to inspect the premises. Wong returned seven days later to
inventory the firearms.
On December 14, 1995, ATF agents searched Mack's gun shop
pursuant to a search warrant based on Wong's November inspection
information. The government seized the 63 NFA firearms that form
the basis of the indictment in this case. The firearms appeared to
be randomly stored at various unsecured locations in his shop.
After the seizure, Mack again called William Thompson.
Thompson had previously released over 200 guns from the Kern County
Sheriff's Department to Mack for off-site destruction based on
Mack's misleading representation about the scope of his federal
license. Mack asked Thompson to send him a letter stating that Mack
was an agent of Kern County. Thompson told Mack that his department
did not have agents and that he did not have the authority to write
such a letter.
Subsequently, Mack was indicted on charges of possession of
unregistered firearms in violation of 26 U.S.C. sections 5861(d)
and 5872, and possession of firearms with obliterated serial
numbers in violation of 18 U.S.C. section 922(k). Mack moved to
suppress the seized guns based on his allegation that Wong did not
ask for consent to inspect in November.
At the suppression hearing, Mack testified that Wong told him
that Wong was there to do a compliance inspection.
Mack testified that he believed that under those circumstances
he had no choice but to allow Wong to inspect his gun shop. Wong
testified that he was conducting an application inspection and that
he had asked for Mack's consent before inspecting the gun shop. The
district court concluded that the issue of consent turned on
credibility. Finding that Mack had consented to the search, the
court found Wong's testimony to be more credible than Mack's. The
court denied the motion to suppress.
In a pretrial ruling on a motion in limine, the district court
ordered excluded all evidence designed to establish that Mack was
a duly authorized agent of any state or local law enforcement
agency that entrusted him with the contraband weapons. The court
accepted the prosecutor's argument on behalf of the government,
that only federal law enforcement agencies could authorize such
possession. Accordingly, the court told Mack's counsel, "you can
introduce evidence of what Mr. Mack was told by the federal
officers, but as far as the state officers are concerned, no." The
district court also said, correctly we believe, that "it doesn't
matter whether the local police appointed [Mack] as an agent."
Consistent with these rulings, the district court refused
Mack's request to instruct the jury that if it found that Mack
possessed the weapons on behalf of and with the authorization of a
local police agency for the purpose of destroying the firearms, he
was not guilty of the offense charged.
The jury found Mack guilty on all charges. On June 27, 1997,
he was sentenced to 15 months in prison, three years supervised
release, and a fine of $12,500.00. Mack challenges his convictions
on appeal.
STANDARD OF REVIEW
We review the district court's interpretation of a statute de
novo. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).
A claim of insufficient evidence is reviewed in the light most
favorable to the government to determine if any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt. United States v. Randolph, 93 F.3d 656, 660 (9th
Cir. 1996). A claim for ineffective assistance of counsel is
reviewed de novo. United States v. Benlian, 63 F.3d 824, 826 (9th
Cir. 1995). We review the constitutionality of a statute de novo.
United States v. Hicks, 103 F.3d 837, 847 (9th Cir. 1996). A
district court's refusal to give a jury instruction requested by
the defense that is based on a question of law is reviewed de novo.
United States v. Eshkol, 108 F.3d 1025, 1028 (9th Cir. 1997).
DISCUSSION
A. Applicability of the Statutes
Mack contends based on an agency theory that the terms
"receive" and "possess" in 26 U.S.C. section 5861(d) and 18 U.S.C.
section 922(k) do not include the acts of private citizens
receiving or possessing weapons from local law enforcement agencies
in order to destroy them. He argues that the application of the
statutes to this type of conduct would undermine and contradict
long-established federal gun control policy that fosters and
supports state-based gun control laws. Thus, Mack does not contest
that he knowingly possessed or received the weapons at issue.
Instead, he contends that the conditions under which he obtained
and then exercised dominion and control over them exempts him from
punishment under the statutes. We conclude, however, that Mack's
conduct is not exempt from the prohibitions of 26 U.S.C. section
5861(d) and 18 U.S.C. section 922(k).
The plain language of the statutes indicate that they apply to
any person. Title 26 U.S.C. section 5861(d) states:
It shall be unlawful for any person . . . to receive or
possess a firearm which is not registered to him in
the National Firearms Registration and Transfer
Record.
26 U.S.C. section 5861(d) (emphasis added). Similarly, 18 U.S.C.
section 922(k) provides in relevant part:
It shall be unlawful for any person . . . to possess or
receive any firearm which has had the . . . serial
number removed, obliterated, or altered and has, at
any time, been shipped or transported in interstate or
foreign commerce.
18 U.S.C. section 922(k) (emphasis added).
There is a "strong presumption that the plain language of [a]
statute expresses congressional intent. " Ardestani v. INS, 502
U.S. 129, 135 (1991) (quotation and citation omitted). The
presumption "is rebutted only in rare and exceptional
circumstances, when a contrary legislative intent is clearly
expressed." Id. at 135-36 (quotation and citations omitted). We can
find no indication that Congress clearly expressed a contrary
intent other than that found in the plain language of the statute.
Therefore, "we are bound to take Congress at its word." Oubre v.
Entergy Operations, Inc., _______ U.S. _______, 118 S. Ct. 838, 841
(1998).
In response to this construction of these statutes, Mack
claims that such a literal approach will cause havoc to rain down
upon the normal operations of local police agencies. He foresees
mischievous and absurd consequences: local police
may still be able to confiscate illegal firearms, but
they will no longer be able to store them in property
rooms run by civilian custodians.
He also argues that law enforcement agencies, prosecutors, and
defense counsel will be precluded from having firearms examined by
independent laboratories; and that the Alpine County California
Sheriff's Department will be unable "to ship such a firearm via UPS
to the state forensic laboratory in California for examination."
Even if some of Mack's parade of imponderables were to come to
pass, however, such consequences of a sweeping law against deadly
weapons used primarily by robbers and other violent criminals are
best addressed by the legislative branch of government, not by us.
It is common knowledge that the primary purpose of shortening a
shotgun or a rifle under the permitted length is to make it
concealable and thus effective in the commission of serious crimes
such as bank robbery, murder, drug trafficking, and gang violence.
The same purpose attaches also to the obliteration of serial
numbers on handguns: The act of obliteration makes them harder to
trace. Congress surely is within its power when it acts decisively
to protect the nation from such weapons, and to ensure that once
they are seized, they do not immediately leak again into commerce
or the private sector.
More to the point, however, the law has long recognized that
the reach of a strictly-constructed statute stops short of
nonsensical consequences. The Supreme Court has recognized that a
statute shall be construed to exempt the government if application
of the statute to the government would create an absurdity. See
Nardone v. United States, 302 U.S. 379, 383-84 (1937). The statutes
at issue here would create an absurd situation if any duly
authorized employee of a state or local law enforcement agency
could be punished for possessing confiscated weapons in the scope
and course of the employee's duty. Neither statute expressly
includes the government within their prohibitions. Thus, we
conclude that local law enforcement agencies and their employees
are able, without running afoul of the statutes, to possess the
prohibited weapons in order generally to enforce the law, to
prosecute defendants, and to destroy the weapons. [footnote 4]
Mack's conduct does not fit within Nardone's governmental
exception. Mack was expressly and accurately warned by federal
authorities on more than one occasion that he was not allowed to
possess the contraband weapons. His federal license did not confer
upon him the power to do so. Moreover, he was unable to show that
any local law enforcement agency considered him to be its employee
for one simple reason: he wasn't. When the evidence is viewed even
in the light most favorable to him, at best he was a self-appointed
private interloper who steadfastly created a false impression as to
the scope of his authority in connection with his federal license.
He came into possession of the weapons by misleading the police.
The facts of this case sharply illustrate the wisdom of
Congress' purpose strictly to control the handling of dangerous
weapons identified as contraband and to cause them to be
confiscated and destroyed. To allow state or local law enforcement
agencies to deliver unsupervised possession of such weapons into
the hands of non-agency persons is tantamount to permitting the
seized weapons to be released once more into the private world from
which they were taken. To permit the release from government
control of contraband once seized--be it cocaine, heroin, child
pornography, knock-off "Rolex" watches, or anthrax--would be a
senseless act. Practically speaking, once these weapons were under
Mack's dominion and control, he had the raw power to do with these
weapons whatever suited his fancy. The special attributes of
government agencies that justify their regulated possession of
contraband are nowhere to be found in this set of disquieting
facts, either in Mack's perishable license or his sometimes
bankrupt business. In fact, according to his own testimony, his
previous store was invaded at least twice by burglars and robbers
in 1992 resulting in the loss to the invaders of "a lot of
merchandise." One doubts that robbers and burglars would destroy
the NFA weapons as required by law. Moreover, Mack's claim that his
guiding purpose was to destroy the weapons is undercut by his
desuetude in so doing. Under these circumstances, our dissenting
colleague's anguished cries of "federal prosecutorial power run
amok " strike a false note.
The jury had substantial evidence on which to convict him
under both statutes of exercising dominion and control over the
prohibited firearms.
B. Ineffective Assistance of Counsel
Mack contends that he received ineffective assistance of
counsel, claiming that his attorney failed adequately to impugn the
credibility of ATF Inspector Wong. At trial, however, Mack's
counsel made the arguments that Mack now alleges were essential to
his case. Additionally, his counsel thoroughly cross-examined Wong
regarding the issue of consent. Thus, we conclude that the
performance of Mack's counsel's was adequate under Strickland v.
Washington, 466 U.S. 668, 687-90 (1984).
C. Constitutionality of the Statutes
Mack contends that 26 U.S.C. section 5861(d) and 18 U.S.C.
section 922(k) are unconstitutional because: (1) the statutes
interfere with the sovereignty of the states in light of Printz v.
United States, _______ U.S. _______, 117 S. Ct. 2365 (1997); (2)
Congress exceeded its Commerce Clause power by passing the
statutes; and (3) the statutes violate the Second Amendment right
to bear arms. We disagree.
The statutes may require accommodation by state officials, but
they do not interfere with the sovereignty of the states. Unlike
the statute at issue in Printz, sections 5861(d) and 922(k) do not
press state officials into federal service. Therefore, we conclude
that Printz simply does not apply in this case.
Mack also argues that under United States v. Lopez, 514 U.S.
549 (1995), the statutes at issue in this case exceed Congress's
Commerce Clause power. We conclude, however, that Congress did not
exceed its power by passing the statutes. We have already
determined that the passage of section 5861(d) was a permissible
exercise of Congress's taxing power. See United States v. Tous, 461
F.2d 656, 657 (9th Cir. 1972) (per curiam). Thus, the statute is
not vulnerable to a Commerce Clause challenge. Further, after
Lopez, in United States v. Hanna, 55 F.3d 1456, 1462 n.2 (9th Cir.
1995), we held that the requirement under section 922(g) that a
firearm was, at some time, in interstate commerce is sufficient to
establish a statute's constitutionality under the Commerce Clause.
Section 922(k) has a requirement identical to the requirement of
the statute in issue in Hanna. Section 922(k) makes it unlawful to
possess or receive a firearm with the serial number altered if it
has been shipped or transported in interstate of foreign commerce.
18 U.S.C. section 922(k). Thus, we conclude that the prohibitions
of section 922(k) do not exceed Congress's Commerce Clause
authority to legislate.
Mack also contends that the statutes violate his Second
Amendment right "to keep and bear arms." U.S. Const. amend. II.
This court has clearly held, however, that private citizens do not
have standing to bring a Second Amendment challenge. See Hickman v.
Block, 81 F.3d 98, 101 (9th Cir. 1996).
D. Entrapment by Estoppel and Public Authority Defense
Mack claims the trial judge erred by refusing to instruct the
jury on the defenses of entrapment by estoppel and reliance on a
public authority. These claims are without merit because Mack did
not rely on the advice or authority of federal officials or agents.
See United States v. Collins, 61 F.3d 1379, 1385 (9th Cir. 1995)
(holding that a defendant arguing entrapment by estoppel against a
federal statute must have relied on federal official's or agent's
erroneous advice); and see United States v. Burrows, 36 F.3d 875,
882 (9th Cir. 1994) (holding the same for the public authority
defense).
CONCLUSION
Based on the foregoing analysis, we affirm Mack's convictions
under 26 U.S.C. section 5861(d) and 18 U.S.C. section 922(k).
AFFIRMED.
FOOTNOTES
1. The NFA requires sawed-off shotguns to be registered with the
Bureau of Alcohol, Tobacco, and Firearms, in the National Firearms
Registry. See 26 U.S.C. section 5861(d).
2. Our respected dissenting colleague's attempt to undercut this
testimony is not valid. Although he claims he is taking Thompson's
testimony "as a whole," his presentation of it inappropriately
fuses and blurs two separate conversations between Mack and
Thompson, the first held in person at a gun show, and the second
held days later over the telephone. A fair reading of the testimony
reveals that Mack did not contradict or withdraw over the phone
what he told Thompson in person, and he did not deny at trial that
he told Thompson that his federal license authorized him to possess
and to destroy NFA weapons. Mack's oblique explanation that his
statements to Thompson were "out of context" is an admission that
he made them.
3. With all respect to our colleague, his dissent misrepresents
whose idea it was in the first place for Mack to take and to
destroy these weapons. Reading the first two paragraphs of the
dissent would falsely lead a reader to assume that the police
agencies actively sought Mack out for this task when in fact it was
the other way around--Mack approached them. The implication of the
dissent's fanciful presentation, of course, is that it was "unfair"
for the federal government to prosecute a person recruited and
misled by local police; but that is not this case. The facts as
developed in trial demonstrate otherwise.
For a real example of the hypothetical case suggested by our
colleague, the reader might care to examine United States v.
Barker, 546 F.2d 940 (D.C. Cir. 1976). In Barker, low-level
Watergate conspirators were absolved of criminal responsibility
because they relied on "authoritative pronouncements of officials
whose decisions we wish to see respected." Id. at 947. For an
excellent discussion of the exculpatory effect of certain mistakes
of law, see Professor George Fletcher's "Rethinking Criminal
4. We note the common practice of using private contractors to melt
down these weapons in a smelter in the presence and under the
direction and control of officers present at the scene. The mere
circumstantial handling of such weapons under the immediate
direction of state or government employees by private persons would
not amount under the law either to receiving or possessing the
weapons. Such episodic handling lacks the required dominion and
control required to satisfy these elements of the statute.
REINHARDT, Circuit Judge, dissenting:
I.
We have before us a case of federal prosecutorial power run
amok. This time, the target is a most unusual one. After sweeping
aside the rights and interests of local law enforcement agencies in
conducting their business in a manner they deem appropriate and
efficient, the majority upholds the conviction of a citizen who did
no more than act in accordance with the lawful instructions of
several local police and sheriffs departments, and, at their
request, perform a non-law enforcement function on their behalf. In
doing so, the majority condones not only the violation of the
rights of an individual but a serious intrusion on the independence
of local law enforcement agencies.
Dennis Mack is a licensed gun dealer who is now serving 15
months in a federal prison. His crime was carrying out a function
duly assigned to him by local law enforcement agencies, and
performed for their convenience and benefit. On behalf of, and at
the behest of these agencies, Mack took possession of illegal
firearms that they had seized in order to destroy them, as the
agencies were required to do. Mack's defense to this bizarre
prosecution has remained consistent from his pre-trial motions
through his appeal to this court. He has contended that his
possession of the prohibited weapons was not illegal because he was
acting on behalf of local law enforcement agencies, at their lawful
request. He is correct, both as a matter of fact and law. The laws
of the United States do not criminalize such innocent and
constructive conduct, and Mr. Mack was convicted of a crime he did
not commit.
In its opinion, the majority correctly holds that there is no
violation of either 26 U.S.C. section 5861(d) or 19 U.S.C. section
922(k) when a "duly authorized employee" of a local law enforcement
agency is given prohibited firearms by a local agency for the
purpose of destroying them, although the statutes appear on their
face to prohibit giving such arms to any person. The problem arises
because the majority's interpretation of the statutes is
arbitrarily limited and stops short of the only reasonable
construction: when any duly authorized person -- be he a "duly
authorized employee," a "duly authorized agent," or a "duly
authorized contractor" -- is given weapons by a local police
department in order to destroy them, the person's possession of the
weapons for that purpose is not unlawful. Indeed, this reasonable
construction of the statutes is precisely the one given them by the
head of the Bureau of Alcohol, Tobacco, and Firearms -- the federal
agency responsible for their enforcement. Why the majority believes
that a "duly authorized employee," an ordinary non-uniformed
individual employed by a law enforcement agency, may possess these
weapons, but a duly authorized private contractor or agent whose
services have been specifically retained by the agency for that
purpose, and who is himself licensed to handle firearms, may not,
we are left to wonder.
There is nothing in the statute that requires the anomalous
result the majority reaches. Rather, it is only the majority's
policy disagreement with the Director of the ATF, John Magaw, as to
whether local agencies should be free to use the services of
outside persons to destroy weapons that causes it to reach the
decision it does. Because there is absolutely nothing in the
statutory language that supports the majority's construction,
because there is nothing in that language that permits agencies to
use civilian employees but not civilian agents or independent
contractors, and because the ATF's interpretation of the statutes
is reasonable and the majority's is not, I would adopt the
Director's construction and reverse Mack's conviction.
The evidence in this case is undisputed that Mack was given
the firearms by local law enforcement agencies, as their agent, in
order to destroy the weapons. In a series of erroneous evidentiary
rulings, however, the district court excluded the most favorable
and direct testimony on this point; it also approved a set of
erroneous jury instructions that prohibited Mack from relying on
his one and only defense, an absolutely proper one: that he was
duly authorized to possess the weapons for purposes of destruction.
All of the district court's critical rulings were premised on a
theory of the law that is entirely incorrect: the district court
ruled that only the federal government may authorize a person or
entity to take possession of prohibited firearms in order to
destroy them. I, like the Director of the ATF, understand the
statute to allow local law enforcement agencies to do so as well,
at least in instances in which they lawfully come into possession
of illegal weapons that they intend to destroy.
Even though the evidence was undisputed that Mack was lawfully
given the weapons by local law enforcement agencies so that he
could destroy them on their behalf, the jury was told by the
district judge that they could not acquit him on that basis. This
despite the fact that, as the Director of the ATF reports,
possession for purposes of destruction by an authorized agent of a
local law enforcement agency is not a crime.
The majority opinion is in error in two fundamental respects.
First, refusing to accept the uncontroverted fact that Mack's
possession of the weapons was explicitly authorized by local police
departments, the majority seriously misstates the circumstances of
this case. Second, the majority's construction of the statutes is
arbitrary and departs, for no good reason, from the logical
construction given them by the ATF.
II.
The majority incorrectly describes Mack's relationship with
the local law enforcement agencies on whose behalf he possessed the
weapons. According to the majority, "[w]hen the evidence is viewed
even in the light most favorable to [Mack], at best he was a
self-appointed private interloper who steadfastly created a false
impression as to the scope of his authority in connection with his
federal license. He came into possession of the weapons by
misleading the police. " (Opinion at 255). A review of the record
shows that this statement is at best misleading and at worst
plainly incorrect. [footnote 1] First, in no conceivable sense --
let alone viewed in the light most favorable to Mack -- does the
evidence establish that Mack was a "self-appointed private
interloper." Mack attempted throughout the trial to introduce
evidence that he operated as an agent of a number of local police
departments. His attempts to do so were rebuffed continuously by
the district court, and accordingly, Mack was prevented from
putting on most of the evidence that unequivocally demonstrated the
nature of his relationship with the local agencies. For example,
Mack testified that he had received a letter from one of the local
police departments stating that "I appoint Dennis Mack my agent to
transport and destroy these guns." (emphasis added). The district
court had Mack's testimony stricken from the record. (TR 8/14/96 at
156). Mack also attempted to introduce a letter from the City of
Ridgecrest police department -- a department that had provided him
with some of the guns that formed the basis of the indictment --
regarding his relationship with that department. Again, the
prosecutor objected, and again the district court refused to admit
the evidence because it concluded that "it doesn't matter whether
the police department appointed him as an agent. " (TR 8/15/96 at
3-7).
Despite the fact that Mack was almost completely prevented
from introducing evidence in support of his contention that he was
acting at the explicit request of the local departments, the
evidence that was admitted makes it clear that he indeed was, and
that he was without question far more than a "self-appointed
private interloper." During cross-examination, William Thompson,
the property control clerk of the Kern County Sheriff's Department,
testified that the department regularly requested that Mack take
possession of and then destroy the illegal firearms they seized.
The following colloquy with Thompson illustrates the fact that Mack
was not just a "self-appointed private interloper":
Defense Counsel: [W]hen you entered into a
business relationship with Mr. Mack in 1994, that
was for the destruction of guns at the Kern County
Sheriff's Department.
Mr. Thompson: That's correct . . . .
Defense Counsel: And you entered into that agree-
ment because it was beneficial for Kern County
Sheriff's Department?
Mr. Thompson: Correct.
Defense Counsel: And during that -- and in 1994,
Mr. Mack came and helped Kern County destroy
guns?
Mr. Thompson: That's true.
Defense Counsel: Under your supervision; is that
correct?
Mr. Thompson: Correct.
(TR 8/15/96 at 60-62) (emphasis added). Mack initially destroyed
guns for Kern County on the department's premises. When that proved
too "mess[y]," however, Thompson testified that Mack was authorized
to take the weapons off-site in order to destroy them. (TR 8/15/96
at 66-67). [footnote 2]
Second, Mack simply did not "steadfastly create[ ] a false
impression as to the scope of his authority in connection with his
federal license." The majority's statement that he did appears to
amount to nothing more than an echo of the government's answering
brief. The record certainly does not support such an assertion. As
the majority's own exposition of the record makes clear, the only
local police department official to testify on the question was
Thompson. Thus, despite the fact that Mack dealt with numerous
local agencies, only a single employee of a single agency said
anything about Mack misrepresenting his federal licence. From such
limited evidence it is hard to understand how the majority
concludes that any misrepresentation at all was steadfast.
Thompson's testimony taken as a whole was ambiguous. As the
majority notes, Thompson was asked what Mack had said about his
federal firearms license during a gun auction in 1994. According to
Thompson, Mack "indicated that he could take our guns, that it was
no problem for him to take the guns." (TR 8/15/96 at 50). But the
majority cites to only part of Thompson's testimony. When Thompson
was asked about a later telephone conversation with Mack, he
testified as follows:
Q [The Prosecutor]: [D]id he [Mack ] tell you that
he could take possession of your illegal firearms?
A [Thompson]: Yes, he did.
Q: And your sawed-off shotguns?
A: Yes, he did.
Q: And what was the basis for him being able to
take those guns, if you know?
A: Well, he didn't indicate a basis other than he
indicated that he could replace some of the ille-
gal parts . . . .
Q: Did he tell you on the phone that his federal
firearms license allowed him to have these
weapons?
A: He didn't specifically say that but, like I say, he
indicated that it would not be a problem for him
to take possession of them.
(RT 8/15/96 at 53). This testimony, given by a single property
clerk from a single police department, simply does not support the
majority's conclusion that Mack "steadfastly created a false
impression" regarding the scope of that license. [footnote 3] Nor,
accordingly, can it support the majority's conclusion that Mack
"came into possession of the weapons by misleading the police."
(Opinion at 255). More important, the fact is that Mack didn't need
a license and, whether he had one or not, and whether or not he
told the police that one of his federal licenses would permit him
to perform the services the local agencies desired, there was no
legal bar to his taking possession of the weapons, which was all
that mattered to the local agencies in the first place. See infra
n.3.
Despite the majority's suggestion to the contrary, the record
in this case makes it clear that Mack possessed these weapons
because local police departments gave them to him and requested
that he destroy them on their behalf, and that he, therefore,
possessed them lawfully. The evidence, moreover, does not show that
Mack "steadfastly created a false impression" as to what his
license entitled him to do, nor does it suggest that Mack misled
the law enforcement agencies that gave him these weapons, or that
it mattered whether Mack was wrong as to the scope of his federal
licenses. [footnote 4]
III.
Mack was convicted of illegally possessing firearms under two
Federal firearms statutes, 26 U.S.C. section 5861(d) and 28 U.S.C.
section 922(k). Both statutes make it unlawful for "any person" to
possess the weapons described therein. As the majority states, a
strict reading of the statutes would lead to the conclusion that
any possession of prohibited firearms violates federal law. But, as
the majority also states, a strict reading of the statutes produces
an absurd result: if "any person" violates sections 5861(d) and
922(k) when he "possesses" prohibited weapons, then police officers
employed by local police departments are guilty of federal firearms
violations when they seize guns from felons and place them in their
stations' lockers.
It is a well-settled canon of statutory construction that
courts should not rely on the plain meaning of statutes when that
reading would produce absurd results. See, e.g., Public Citizen v.
United States Dept. of Justice, 491 U.S. 440, 454 (1989); Perry v.
Commerce Loan Co., 383 U.S. 392, 400 (1966); Seattle-First National
Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996); In re Pacific-
Atlantic Trading Company, 64 F.3d 1292, 1303 (9th Cir. 1995). This
rule applies to criminal statutes as well as civil ones. See, e.g.,
Aponte v. Gomez, 993 F.2d 705, 708 (9th Cir. 1993).
Applying this rule, the majority properly concludes that
"[t]he statutes at issue here would create an absurd situation if
any duly authorized employee of a state or local law enforcement
agency could be punished for possessing confiscated weapons in the
scope and course of the employee's duty." (Opinion at 254). Any
duly authorized employee, of course, includes both uniformed and
civilian employees of such agencies. While the majority is correct
that the statutes cannot reasonably be read to cover such
employees, it is equally true that the statutes would create an
"absurd situation" if read to provide that any person duly
authorized by a local law enforcement agency -- be he an
"employee," "agent," or "contractor" -- could be punished for
possessing such weapons, when he possesses them at the request and
with the explicit authorization of the agency. The only way to read
these statutes so as to avoid absurd results is to hold that when
local law enforcement agencies authorize private individuals or
entities to take possession of prohibited firearms for the purpose
of destroying them on behalf of the agency, such possession is not
criminal.
This latter, slightly more expansive but far more plausible
reading of the statutes, is also the interpretation offered by the
head of the agency responsible for administering them. John Magaw,
the Director of the Bureau of Alcohol, Tobacco and Firearms (ATF),
in a letter to Representative David Dreier of California issued
while this appeal was pending, stated unequivocally that "law
enforcement agencies are allowed to enter into agreements with
private sector firms to destroy illegal weapons." The ATF letter
makes no artificial distinction between "employees" and other
private individuals or entities duly hired or retained by the local
agency to destroy prohibited weapons. What matters is whether or
not the private party is authorized by the local department to
possess and destroy the weapons. Whether this authorization takes
the form of an employment contract, an agency relationship, or
simply a verbal services agreement, is immaterial. An individual or
entity authorized to possess the weapons by a local law enforcement
agency may not be criminally liable for such possession. [footnote
5]
Had the majority correctly interpreted these statutes, it
would have been forced to reverse Mack's conviction. This is so
because the district court held that a private individual or
entity's possession of prohibited weapons for purposes of
destruction is illegal, even when such possession is duly
authorized by local police agencies, and that only a federal agent
can authorize private parties to possess illegal weapons for such
purpose. [footnote 6]
All of the evidence presented at trial, to the extent that it
was admitted, showed that Mack received the weapons from local
police and sheriffs departments, and that he was authorized by
local law enforcement officers to destroy the weapons on their
behalf. Moreover, as noted above, most of the evidence Mack sought
to introduce regarding the existence of specific agency
relationships between local law enforcement departments and himself
was excluded because the district court ruled that "it doesn't
matter whether the police appointed [Mack] as an agent." (TR
8/15/96 at 6).
Perhaps most significantly, the district court refused to
instruct the jury that if it found that Mack possessed the weapons
on behalf of and with the authorization of a local police agency
for the purpose of destroying the firearms, he was not guilty of
the offenses charged. Instead, the court instructed the jury that
it could find Mack not guilty only if federal agents, rather than
local law enforcement officers, authorized him to take possession
of the weapons. Although the head of the federal agency charged
with enforcing these statutes understands that local law
enforcement agencies may authorize private citizens to possess
weapons of the type involved here for purposes of destruction, the
majority's contrary construction of the statutes leads it to find
no error in the district court's outright refusal to instruct the
jurors on this defense or in its giving the jury a directly
contrary instruction.
IV.
In conclusion, as the ATF has confirmed, Mack's construction
of section 5861(d) and section 922(k) is correct. Contrary to what
Inspector Wong thought, and what the majority holds today, the
district court misconstrued the law when it held that the
authorization by local law enforcement agencies of the defendant's
possession of weapons for purposes of destruction is irrelevant to
the legality of the possession. As a result of this
misinterpretation, the district court made it impossible for the
jury to grant Mack the acquittal to which he was entitled as a
matter of law. It excluded most of the exculpatory evidence he
sought to introduce and then told the jurors in its instructions
that they could convict him despite the fact that he had committed
no offense.
The majority's decision to uphold Mack's conviction is based
on the fact that Mack was not an "employee " of a local law
enforcement agency. The majority fails to explain, however, where
in the statute it finds the distinction, on which its holding is
based -- the distinction between civilians employed by local police
departments and civilians whose services are obtained by those
departments through other contractual means. The majority also
fails to offer persuasive reasons for rejecting the broader
construction of the statutes offered by the head of the ATF -- a
construction that clearly and sensibly exempts not only "employees"
but other authorized persons.
The majority also appears bothered by two irrelevant facts.
First, Mack told Thompson that his federal firearms license covered
his work of destroying weapons. The fact is, as the head of the ATF
has stated, that no federal firearms license is necessary for that
work. Second, Mack failed to follow the legal interpretation of the
firearms statute that Inspector Wong, an ATF employee, persistently
put forth. Wong was wrong, however -- as the head of his agency,
the ATF, has stated.
Because the majority misinterprets the statutes, and because
Mack violated no federal law, I respectfully dissent. I would
reverse Mack's conviction and free him forthwith.
FOOTNOTES
1. In footnote three, the majority contends that Mack sought out
the weapons destruction work from the local police departments, and
that this dissent implies falsely that the departments sought him
out. For starters, this distinction is wholly irrelevant. It
matters not one whit to the outcome of this case whether Mack
offered his services to the police agencies or whether the agencies
found him on their own initiative. The important point is that Mack
performed the services at the request of and on behalf of the local
police and sheriffs' departments. The theory of the prosecution and
the district judge, erroneous as it turns out to have been, was
that the local police agencies lacked the authority to retain
Mack's services. Whether or not he had a federal firearms license
-- and he did -- could not matter less. Moreover, as shown below,
Mack was prevented from introducing evidence as to his relations
with police agencies generally, including any questions as to how
he obtained the business. Each time he sought to establish the
nature of his relationship with local law enforcement agencies,
(except for one minor slip) the district court held the testimony
irrelevant. Thus, it is most unfair of the majority to seize on
bits of conversations regarding one particular relationship and
create out of that a theory that neither party could have imagined
was relevant to the outcome of the case, and indeed is not.
2. Richard Golledge, the property custodian for the City of Shafter
Police Department also testified that his department had given
weapons to Mack to destroy. The defense introduced a copy of the
official property record, kept by that police department,
indicating one such transfer to Mack. (TR 8/14/96 at 83-89). There
is no explanation of how this evidence crept into the record
despite the court's ruling that such testimony was irrelevant and
inadmissible.
3. No other witness testified that Mack had misrepresented the
scope of his license. Mack himself was asked whether he told
Thompson that he "had a federal firearms license that allowed[him]
to take possession of N.F.A. weapons." (RT 8/14/96 at 164). Mack's
reply was: "That's a little out of context." Mack went on to
testify to his understanding that private gun dealers could destroy
weapons without running afoul of the firearms statutes.
4. I point out the discrepancy between the majority's
categorization of the evidence and the actual record because the
majority's presentation of the facts presents a misleading
impression of Mack's conduct. As I discuss below, however, the
majority's contention that Mack misrepresented the effect of his
federal firearms license is irrelevant. As John Magaw, the Director
of the ATF has made clear, local law enforcement agencies may
authorize private citizens to destroy weapons on their behalf. No
federal firearms license is necessary to do so. In a letter to
Congressman David Dreier, Magaw clarified that the "ATF neither
issues licenses nor regulates private firms in the business of
destroying weapons. " Thus, whatever Mack may have said about the
scope of his federal license is immaterial. It is also irrelevant
that Inspector Wong, a federal agent, told Mack that he could not
possess the weapons. Wong, like the district judge, simply
misunderstood what the Director of the agency made clear during the
pendency of these proceedings: local law enforcement agencies may
indeed authorize private individuals or entities to possess, for
purposes of destruction, weapons that local agencies have seized.
5. In a rather cryptic footnote, the majority states that the
common practice of "using private contractors to melt down these
weapons in a smelter in the presence and under the direction and
control of officers present at the scene" does not amount to a
violation of the statutes. The footnote would seem to derive from
the Magaw letter. Nowhere in that letter, however, does the ATF
state that possession of prohibited weapons by private citizens for
purposes of destruction is lawful only when the destruction is
supervised by the local police. Although the ATF "recommends" such
supervision, it is not required, and the lack of supervision does
not make the otherwise lawful possession illegal.
6. Of course, under the majority's construction of the statute
local law enforcement agencies could lawfully authorize a private
individual to possess prohibited weapons in order to destroy them,
but only if it made that individual an employee. Why local
authorities can authorize a private person to possess prohibited
weapons by extending temporary or permanent employment to that
individual, but can't authorize that same individual's possession
of the weapons by any other contractual means, is left unexplained.